22/07/2017 10:01 BST | Updated 17/10/2017 16:42 BST

How Joint Enterprise Landmark Ruling Went From 'Opening The Flood Gates', To Changing Nothing

'Everything is as it was before. People are being charged in the same way. Going to court in the same way and getting found guilty in the same way.'

Rachel Whitehead
Ameen Jogee pictured with his brother after his release from prison 

Six years to the day of his arrest for the murder of a former policeman, Ameen Jogee walked free from Ranby Prison and put his hands on his head in disbelief.

“It felt amazing. It just didn’t feel real, I just didn’t know what to do with myself,” Jogee told HuffPost UK of his release from the Nottinghamshire prison last month. 

Jailed for 20 years under a law he had no understanding of, the now 28-year-old petty felon, who had done previous short-stints inside for drugs and driving crimes, was free due to a decision made by the highest court in the land.

Jogee’s mother, Rachel Whitehead, was equally overcome, having tirelessly fought for her son’s release: “I’d never thought I’d see that day to be honest, but everything happened so quickly after the ruling.”

Killing The Law
Rachel Whitehead has campaigned for her son's release for six years 

In February 2016, the Supreme Court not only quashed Jogee’s conviction, but ruled the joint enterprise law used to secure his life sentence had been “misinterpreted” for three decades, having taken a “wrong turn” in the 1980s.

The decision crippled families of murder victims across the country with fears that cellblocks worth of killers were about to be set free, while simultaneously invigorating murderers and their loves ones with hopes of early release. But seventeen months on, those fighting the law, say nothing has changed. 

Joint enterprise, now referred to as secondary liability, allows the accomplice to a crime to be treated the same as the person who committed the violent act. Defendants simply had to have foreseen violent acts were likely to take place.  

Jogee’s mate, Mohammed Hirsi, killed Paul Fyfe. He put a kitchen knife through his heart then licked his blood from the blade. The pair were drunk and high on cocaine on a Thursday morning in June 2010, when Fyfe, a 47-year-old former detective constable with a bravery award to his name for pulling a suicidal man from a gas-filled car, asked them to leave.

Jogee was already outside Fyfe’s ex-girlfriend, Naomi Reid’s home, on Rowlatts Hill, Leicester, when Hirsi grabbed a blade from a kitchen knife-block and delivered the mortal blow, plunging the weapon four-inches into his chest. Fyfe, who had previously survived stints in Iraq and Bosnia with the armed forces, having joined the army at 16, died before paramedics arrived at the scene. 

Jogee was said to have “egged on” Hirsi, who at 25, was three years his senior, from the doorway of the house, but he maintained throughout subsequent judicial proceedings that he had no knowledge of his co-defendants’ murderous intent and learned only of the kill, when he saw the blade in Hirsi’s hand as they fled the scene. 

“He (Jogee) was going to the door to say, ‘come on, let’s go’, realising there was an altercation going on in the house, and then his co-d (co-defendant (Hirsi), barged out of the house, saying, ‘let’s go, let’s go’, and he just ran with him. And he thought something must have gone off, but he didn’t know what. Then he got down the street and he saw him with this big knife,” Whitehead says of the murder methodology. 

Leicester Mercury/SWNS
Paul Fyfe pictured with his family before his death in 2011

The Supreme Court overturned Jogee’s conviction after concluding that it had been secured on the grounds that he merely had foresight of the potential that Fyfe, who had left the Leicester police force to train to be a solicitor, could suffer life-threatening injuries.

Because Jogee had not been in the room at the time of the killing, the justices said, it had not been proven that he had actively encouraged the crime.

The Supreme Court ruled that it was wrong to treat “foresight” as a sufficient test. Instead jurors should view it only as evidence to consider, rather than as proof to convict on, the decision said.  

Jogee’s lawyer, Felicity Gerry QC, told a yet-to-be released documentary on joint enterprise crimes, called Killing The Law, that her client had been “unfairly convicted” and it was the “law’s fault, not his”.

She argued in court: “The youth is outside, can’t possibly know what’s going on inside and ends up with a life sentence for kicking a car and waving a bottle.”

Leicester Mercury/SWNS
Jogee after his arrest on 11 June 2011

Following the Supreme Court decision, prosecutors now have to prove that accomplices actively assisted or encouraged in the killing to secure a murder conviction. However, the Supreme Court said in its ruling that an accomplice’s foresight of the risk that their companion could cause serious harm that results in death will still be admissible as strong evidence in murder cases and could lead to a conviction for manslaughter.

Jogee, a dad-of-one, was sentenced to 20 years jail for Fyfe’s murder. Hirsi got an extra two.

“I was very surprised, you know what I mean? Even from the first day of the trial we were trying to get the case thrown out... but the jury only takes eight hours to find me guilty for murder,” Jogee told HuffPost UK from a Leicester hostel where he resides on curfew following his release.

“It was horrible. As soon as we got found guilty the judge didn’t even let us go downstairs. She just made us stand up and gave me 20 years on the spot.” 

Whitehead, who has four other children, the youngest of which is nine and has special needs, thought her son would be an “accessory” to the murder at worst. “Well, no, actually, I didn’t think he would get anything, because he wasn’t even in the house,” she said.

“I thought, how could this be right? I thought it was some kind of game they were playing, thinking, giving him a life sentence for what? It just woke me up.

Killing The Law
Jogee's lawyer Felicity Gerry QC argued that it was the 'law's fault' that her client was jailed for murder

“I never needed to dig deep into it (the legal system), until this happened. Then I just didn’t know what to do. I thought that was it. That there was no way out of it.”

Whitehead sat through the trial every day for almost three weeks, but when the verdict was read, she waited in the foyer. As the trial progressed it seemed less and less likely her son would walk free. “And I just thought, ‘I can not do this’” she said.

“Everyone came out crying, but the other family came out were like, ‘yes, result, result’. My legal team, just said, this is not the end, we will fight this.”

And they did - for six years.

First at the Court of Appeal where two years was shaved off Jogee’s sentence and then at the Supreme Court where his convicted was set aside and a re-trail was ordered. 

The first appeal almost broke Jogee: “That’s when it hit me,” he said, adding that he was further knocked off balance because he was in a London prison at the time, “with none of my stuff, it was horrible”.

“That’s when I broke down. That was very hard. That was worser than when I got sentenced. Because when I got sentenced, you know, they said (Jogee’s solicitor) I’ve got grounds for appeal. So, you know, you’re hoping on that. That’s what most people in prison, that are doing life, they’ve got that hope of appeal so none of them let it sink in, you know what I mean?

“Some people, you’d see em and you wouldn’t think they’ve got life, because they’ve got that hope of an appeal and they’re always talking about. In your head you think ‘yeah, I’m gonna get it’, but in the back of your head, you know, you’re thinking, ‘your not going to get out’, but you have to make out like you are just to make yourself feel better.”

After Jogee’s initial murder conviction Whitehead began “to search things up online” and found Jengba - Joint Enterprise: Not Guilty by Association - a non-profit started in 2010 to - according to its website - “highlight the abuse of the joint enterprise doctrine”. The group currently support over 800 prisoners, men women and children, the youngest of which is 13. Almost 80% of Jengba prisoners are from BAME communities.

According to the Bureau of Investigative Journalism since 2005 at least 1,800 people and as many as 4,590, have been prosecuted for homicide using joint enterprise.

Having been educated on “all these other cases”, Whitehead felt reassured and empowered and it snapped her out of the catatonic-like state her son’s conviction had left her in.  

“Every day I’d just be racking my brains thinking, ‘what the hell can I do?’. I can’t just sit around doing nothing. It’s just not me. That’s my son in there. I need to be actively doing something. Any road I can take.

“Then, I just thought, I’m not alone here. There are many other people fighting this and we all need to stick together and get through this.”

Whitehead began attending the group’s meetings and protests across Britain, even facing-off against Fyfe’s family in Leicester, where they were saying “this guy (Jogee) is a murderer... basically, just don’t listen to anything they (Jengba) say”.

“I wouldn’t say anything to disrespect them,” Whitehead said, of her exchanges with the family of her son’s victim. 

“That’s not the way I work. They can say what they want. They’re angry. I get that. But I’m also angry that the system has taken my son for no reason. You have the person, that you need (Hirsi), so why drag someone else down for something they haven’t done.”

Rachel Whitehead
Ameen Jogees mother Rachel Whitehead during a Jengba protest

Whitehead was initially skeptical about Jengba, but after some convincing, joined the front lines.

“They (Jengba) were like, ‘come to this, come to this... get some boards made up with Ameen on it’.

“I was like, ‘how is this really going to make a difference?’. Is it really going to make a difference? But you know what, it’s good for me, it gets me out there. I’ve got inner peace knowing that I’m actually doing something for him, rather than just sitting around. And for me it kind of worked.”

Whitehead sat through the Supreme Court case and “couldn’t understand any of that” and through the re-trial, which, despite being a “big gamble” as Jogee risked being re-convicted of murder and sentenced afresh, she found comforting. Witnesses had “grown-up” since the first “shambles trial” and it was reflected in their testimony. 

“They spoke in a different way,” Whitehead said of the trial that was meant to last five days, but lasted four weeks - twice the amount of time his initial joint-trial with Hirsi lasted. 

“When they came back they said, ‘it wasn’t like that’,” Whitehead recalls.

“The main witness actually said, ‘you know, that could have been my son sitting there where that young lad is sitting, you know, you should have some consideration, because its not fair on him. You’ve put him... you’ve given him a charge for something he hasn’t even done. He had no involvement. He wasn’t in the house. He was outside at the time’.”

Jogee was later convicted of manslaughter and sentenced to 12 years prison. While thinking the charge was still “harsh”, he was happy, “I had 20 years before... I’d take it any day. Anyone in prison for life, would happily take it.”

He added: “It was the best feeling ever, when they said not guilty on the murder, that was the best feeling ever, because I knew whatever they give me, even if I got manslaughter, I’m out soon. That was the best feeling ever. I can’t describe that feeling. It was this big weight off my shoulders.”

Gogee’s judicial journey hasn’t been easy on his family. His mother, daughter, now eight, and his siblings, have struggled. 

“It has had an impact all around,” Whitehead explained, before detailing the guilt she feels for having spent so much time away from her children to champion her son’s release, especially her youngest child who has ADHA and speech and language impairments. 

Rachel Whitehead
Whitehead shows off the back of her t-shirt which boasts of her sons Supreme Court win

“I just felt like I spent too much time away from my kids because all I thought about was Ameen, which I know, sounds a bit selfish, but, I just think, I should have kept my eye on the little one a bit more, because he has special needs.

“And my other son, he was at school, and he used to get, unfortunately, a few teachers bringing in the paper some times and saying... making sarcastic comments like, ‘if you’re going to carry on like this, you’ll end up like your brother’, kind of thing. But all the kids in the school knew, everybody knew he was innocent.”  

The Fyfe family has endured a heartache of a different kind, fighting Jogee’s release at every turn and they’ve even, according to Whitehead, messaged her on Facebook. 

Fyfe’s sister Jill told the Daily Record in 2014: “Jogee keeps fighting to get out of jail and we are fighting to keep him in.

“We can’t move on and grieve because the case keeps coming back to court.

“It is devastating that the law is being used to keep us trapped in this hell.”

PA Archive/PA Images
Fyfe's wife Tracey with his daughter Jess

Before the Supreme Court verdict Fyfe’s wife Tracey told journalists she would be “devastated” and “frightened” if Jogee was freed.

She said: “I think it is a very important law and it think I would be quite devastating for the victims’ families like us, which would mean that criminals like Ameen Jogee would literally be getting away with murder.” 

In the seventeen months since the Supreme Court decision Whitehead has thought a lot about the turning points in her son’s case, joint enterprise laws, Jengba and the hundreds of families still fighting to “free their loved ones”. 

“It was a very, very, big relief,” Whitehead said of the Supreme Court decision. 

“I think, at that time, with the hype of everything, you kind of just look at it as like, ‘yes, the laws changed, the laws changed, this and that,’ but then when you kind of settle down, you think, ‘hold on a minute, where has it actually changed’?.

“It’s changed for my son, but what about everyone else? Cause you’re in this world of your own, and you’re thinking of getting your child out of prison. You kind of, and I know it is really horrible to say, but, you don’t forget, but you kind of forget about everyone and what they’ve gone through, like us, cause you kind of concentrate on your own. But then when you have time for yourself, you’re like, ‘hold on a minute, is this really going to work for everyone, or is it just my son who has managed to slip through the gates’, shall I say. Slip through the net. Yeah, because for me, right now it just seems like it is Ameen. I don’t see anything else for anybody else at the moment.”

Initially, Whitehead said, the case felt like a “game changer for everyone”, that her son’s “get out of jail card” would be a “door opener for everyone else”. 

“That’s what everyone assumed at first. When you look into it more, you see it’s not like that. Everyone just thought, ‘oh my God, all of these murderers are going to be let out of prison. Lets just open the door for everyone to come out, and they’ve all murdered family members and this and that’. But it’s totally not like that.”

Within months of the Jogee decision dozens of appeals were launched, or re-activated having been paused awaiting the Supreme Court decision, but they have all failed. Jengba estimates around 820 cases need to be reviewed. 

PA Wire/PA Images
The Supreme Court found that the joint enterprise law had taken a ‘wrong turn’ in the 1980s

The first successful appeal that cited the Jogee decision reportedly occurred last month, according to The Comet, when Courdel Reid, from Hitchen, had a charge of aggravated burglary dropped. The 23-year-old getaway driver, who had already served two years and eight months jail, successfully argued he did not know his four co-offenders had weapons during the burglaries. His conviction was then deemed unlawful and he admitted the lesser charge of burglary, for which he was sentenced to seven days jail. 

While examples of where the Jogee case has impacted convictions are rare, the Guardian reported in June last year - four months after the Supreme Court decision - that it was having an affect on new cases progressing through the courts. It said two defendants charged with murder had been formally acquitted, mid-trial, at the Old Bailey, and an eight-handed murder trial in Bristol was postponed for the prosecution to reconsider its case.

The Crown Prosecution Service has since re-written its prosecution policy around secondary liability (formally known as joint enterprise laws), a spokesperson told HuffPost UK, with a consultation document being circulated at the start of July to interested parties who have until September 28 to issue their feedback before the policy is formalised. 

It reads: “This consultation document sets out the main principles of secondary liability, as stated in Jogee, and provides guidance on how prosecutors should approach charging decisions in cases of secondary liability, in particular those that involve conditional intent and those that involve group assaults.”

For Jengba the fight continues on a number of fronts, but the “massive relief” they felt after the Jogee Supreme Court decision has turned to frustration. 

“The door opened and then it has been tightly slammed shut, definitely, that’s how I describe it,” spokeswoman Jan Cunliffe, whose own son Jordan is serving a life sentence for murder, told HuffPost UK.

Jogee echoes those sentiments, saying even in prison he came across cases that were more worthy of appeal than his own. 

“Look now, they’ve changed the law, but no ones even got through or nothing. They’ve knocked every one back. There’s loads of people that I’ve been in prison with... some of the cases, they’ve probably got more evidence on mine, than there was theirs’, you know what I’m sayin? They ain’t getting no appeal. 

“I feel bad for them, cause I still speak to one of the lads in that, from Dovegate (prison) and he’s like, ‘I’m sick of hearing about it now, I’m just going to crack on with the rest of my time’.” The friend, Jogee explains, was sentenced to 21 years jail for a drunken robbery in which his co-defendant “hit a shop keeper over the head with a bottle, killing him”, while he stood outside. 

PA Archive/PA Images
Baroness Newlove is comforted by her daughter Danielle at the funeral of her husband Gary

The case of Cunliffe’s son’s conviction typifies the tragedy of joint enterprise laws. The 16-year-old, who was convicted along with two other teenagers for the 2007 murder of Gary Newlove, in Cheshire, is legally blind. Cunliffe detailed the heartbreak of her son’s conviction in a blog for HuffPost UK in March

Cunliffe: “There was a massive feeling of relief that there was going to be justice for all of us, or at least, a good many of us, because a lot of people that were convicted in the same way that Jogee was, under the foresight principal... a lot of these people hadn’t used a weapon, or weren’t physically at the scene, or they weren’t the perpetrator. People that were secondary parties, all thought they had a chance,” Cunliffe explained. 

Of 15-20 cases taken to the Court of Appeal (COA) since the Jogee decision, all have failed, including one involving two brothers, Asher and Lewis Johnson, which Jengba assumed, on the basis of the Jogee ruling, was “a very strong case”. The brothers had assaulted Thomas Cudjoe during an altercation on a Shell forecourt in Ilford, east London, in November 2012, but were not present when he was later stabbed to death.

That “very strange and usual decision”, Cunliffe says, is now being cited by the Criminal Case Review Commission to knock back other joint enterprise cases on the basis they don’t have a reasonable chance of succeeding on appeal. 

“It (the Johnson decision) has most definitely thrown a spanner in the works... if anything, it feels as if it has made things worse.”

Cunliffe adds: “The other thing, they (the Crown Prosecution Service) don’t want to call it joint enterprise anymore (it is now known as secondary liability). For us as a campaign group, it is almost as if they are shutting us down. By shutting down the phrase itself, it actually makes it look like it has gone away. But it hasn’t. That’s not the case. Everything is as it was before. People are being charged in the same way. Going to court in the same way and getting found guilty in the same way.” 

For Cunliffe, the problem, lies with the criminal justice system as a whole: “I think the system itself doesn’t want to admit that the problem is as big as it is. I don’t think the Court of Appeal is big enough to take on so many cases all at once. If I think about how many cases we have, and all of them have to be seen in the Court of Appeal, we’d block the place up for years on end. It is almost like they don’t have the time or the resources to see all the cases.”

Nevertheless, the fight continues for Jengba, who this month sent around a dozen handwritten letters from people convicted under joint enterprise laws to Home Secretary Amber Rudd. It also launched the Joint Enterprise Appeal Project, which is based on the Innocence Project model in the US.

Thirteen universities, including Cambridge, are now working with the group, taking on 3-4 cases each, in search of prosecutorial failures” and “examples of the CPS actively convicting innocent people”, Cunliffe said.

Next year Jengba hope to take the findings to the Justice Secretary as a “body of research” they hope will lead to a Select Committee inquiry.

One letter sent to Rudd was from Charlotte Couson who was jailed for 20 years for joint enterprise murder. The 21-year-old was in a car with her co-defendant, a homeless drug user named Alicia, who she had known only three months, and Michael Kerr, a long-standing friend. The trio had been drinking and Couson, who was driving, decided it best to pull over. Kerr took over the driving, but later Couson claims she woke to find Michael on top of Alicia and her struggling to get free. Alicia then stabbed Kerr, who died as a result. 

Her letter to Rudd reads: 

To Amber Rudd,

I’m not going to write you a long sob story but I’d like to ask you why a legal doctrine can is ‘misinterpreted’ for over 30 years and even now after last year’s historical judgement, hundreds of people (including myself) can be left in jail to rot, having to serve life for a crime I haven’t even done!

I’ve been inside for four years of my 20 year tariff. My life has been took away from me. I come in at 21 years old and have no children so I won’t get a chance to now unless I can get out. 

I wake up everyday wondering why I’m still battling life. I don’t live for myself, only for my family. I’m dead inside. people have tried to attack me, i’ve been abused and threatened with rape. You can never feel safe here and I’m always on edge. 

All I want is to be back to my family. Back to work and have my independence and freedom back. I’m not a criminal, I’m a human being. It was my friend who was killed and I go through hell daily for not helping more. 

We need improvements in the law and joint enterprise sufferers need to be released.

Life has been “hectic” for Whitehead since Jogee was released, though he has not moved back in with her, where his four siblings still reside.

He didn’t want to return to Leicester, “because things went on here”, but police refused to allow him to move to Birmingham so he could make a “fresh start”, Whitehead explained.

For now, he lives in a hostel about 10-minutes drive away from his family, under curfew, though he visits daily which is “fantastic, so fantastic, having him back”.

HuffPost UK
Letters written to Amber Rudd by people convicted under joint enterprise laws

Because Jogee’s case moved so swiftly through the court system, he never had day release so feels “likes he’s been dropped in the deep end”, having been untethered, with little notice, from a “six-year regiment he was tied to”.

A football injury from his childhood has complicated matters further. It flared-up in jail causing his knee to “collapse” and he now needs surgery before he can secure work in traffic management, something he studied in prison. 

While Jogee is free, Whitehead says her involvement with Jengba is far from over and she plans to support the group and its members whenever she can. 

“I’ve always said to them, ‘I may have got my son out. But you lot are still fighting it and if I can ever come to anything. I will come. I will not just forget you’. Because what they’ve given us. I can’t just stop now. That wouldn’t be fair.”

Jogee has mixed feelings about his journey, on one hand, “I’m happy innit, because I’m out, but at the same time there’s other people in prison”.

“They need to sort it out. I don’t know what to do. I don’t know what they’re going to do. I don’t understand it. I don’t understand how the law changed and no one is getting a deal.”

For the hundreds of prisoners still serving time for joint enterprise crimes, Jogee has a simple message: “Stay positive. Keep digging at it. That’s all I did.”